Isidora M. v. Silvino M.

• Citation: 239 Cal.App.4th 11,190 Cal.Rptr.3d 502
• Decision Date: 31 July 2015
• Docket Number: B256587
• Court: California Court of Appeals
• Parties: ISIDORA M., Plaintiff and Appellant, v. SILVINO M., Defendant and Respondent.

239 Cal.App.4th 11

190 Cal.Rptr.3d 502

ISIDORA M., Plaintiff and Appellant

v.SILVINO M., Defendant and Respondent.

B256587

Court of Appeal, Second District, Division 3, California.

Filed July 31, 2015

Neighborhood Legal Services, Natalie Samarjian and David Pallack, Pacoima, for Plaintiff and Appellant.

Guerrero & Chan, Marissa E. Barela, City of Industry, and Daniel A. Guerrero, Pasadena, for Defendant and Respondent.

OPINION

EDMON, P.J.

Plaintiff and appellant Isidora M. (Isidora)¹ appeals the trial court's issuance of a mutual restraining order insofar as the order enjoins her conduct. The trial court issued a five-year mutual restraining order on a petition brought by Isidora pursuant to the Domestic Violence Prevention Act (DVPA) (Fam.Code, § 6200 et seq. ),² in which she sought a restraining order against her husband, defendant and respondent Silvino M. (Silvino), from whom she was separated.

Isidora contends the trial court erred in making the restraining order mutual in the absence of an affirmative request by Silvino for such protection. We agree. We conclude that a trial court may issue a mutual domestic violence restraining order under section 6305 only if both parties have filed requests for such relief, so as to give the requisite notice to the opposing party.

Accordingly, the mutual restraining order, insofar as it restrains Isidora, is reversed.

FACTUAL AND PROCEDURAL BACKGROUND

1. Earlier proceedings

The parties had a volatile relationship. They were married in 2001 and separated in 2009. On May 8, 2012, Isidora was arrested following a heated confrontation between them. On May 10, 2012, a criminal protective order was issued against her. That order was modified on July 31, 2012, and again on July 31, 2013, the latter order barring Isidora from coming within 100 yards of Silvino. The criminal protective order will expire on July 31, 2016.

2. The instant case

On February 14, 2014, Isidora filed a request for a domestic violence restraining order, pursuant to the DVPA, against Silvino for herself and their two minor children. She stated in the request that she feared for her safety and that of her family because Silvino had threatened to kill her.

Silvino did not request a restraining order against Isidora. Silvino filed a response (Judicial Council form DV-120), stating he did not agree to the order requested by Isidora.³ Silvino's supporting declaration requested that the court deny relief to Isidora and that he be granted sole legal and physical custody of the children. In support of his request for sole legal and physical custody, Silvino attached supporting exhibits, including a 2009 crime report from the West Covina Police Department that showed Isidora had been arrested for willful infliction of corporal injury on Silvino, a 2012 crime report indicating Isidora had been arrested for assault with a deadly weapon and spousal battery, the May 10, 2012 criminal protective order restraining Isidora, and the two subsequent modifications thereto.

When the matter came on for hearing on March 28, 2014, the trial court indicated the matter at hand was Isidora's request for a domestic violence restraining order against Silvino. The trial court heard testimony from Isidora, Silvino, and others. Isidora was asked about her 2012 guilty plea to a charge of domestic violence, and about the underlying incident that led to that arrest. Isidora testified, inter alia, that she needed a restraining order in this case because Silvino repeatedly had threatened to kill her.

During closing argument, there was no discussion of a restraining order to protect Silvino from Isidora. The focus of argument was on Isidora's credibility and whether she needed a restraining order against Silvino.

Once the matter was submitted, the trial court issued a five-year mutual restraining order. The court stated, “[I]t's clear to me that there ... has been domestic violence in this household. [¶] [Isidora has] already been convicted so I don't have to make any findings. That's been established ... beyond a reasonable doubt. She's a restrained person.... [¶] ... [¶] Simply put, it's unfortunate for these parties; but what they forgot is when they brought it to hearing[,] because there are written responsive pleadings in this case[,] that authorizes me to make cross orders. So, therefore, I find that there is evidence of domestic violence in [this] household and in this relationship. [¶] I also make a finding that I'm going to make mutual orders.... [¶] ... [¶] I'm issuing these orders for five years against both parties, five years from this date.” The trial court noted that Isidora was already subject to a criminal protective order to stay away from Silvino, “so this is really kind of a repetition of that order.”

Isidora's attorney sought a clarification, stating: “I just want to make sure I understand correctly that, although a restraining order was never requested by [Silvino] in [this] case it is still being issued, five years protective to [Silvino]?” The trial court confirmed, “That's correct.... [Be ]cause he filed responsive papers. That opens my jurisdiction.” (Italics added.)

Isidora filed a timely notice of appeal from the March 28, 2014 restraining order.⁴

CONTENTIONS

Isidora contends the trial court lacked the authority to issue a restraining order against her without a request by Silvino for such relief. We consider both that issue and whether the restraining order against Isidora is infirm on the ground the trial court issued the order without making the detailed factual findings required by section 6305.⁵

DISCUSSION

1. Standard of appellate review.

While we review the trial court's decision issuing a restraining order under the DVPA for an abuse of discretion (J.J. v. M.F. (2014) 223 Cal.App.4th 968, 975, 167 Cal.Rptr.3d 670 ), the statutory construction of section 6305 is a pure question of law which we review de novo (In re Marriage of Davis (2015) 61 Cal.4th 846, 851, 189 Cal.Rptr.3d 835, 352 P.3d 401 (Marriage of Davis ); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432, 101 Cal.Rptr.2d 200, 11 P.3d 956 ).

2. Trial court erred in issuing a mutual restraining order under section 6305 because Silvino did not file a request seeking a restraining order against Isidora.

a. Viewing section 6305 in the context of the entire DVPA of which it is a part, a mutual restraining order may not be issued without a written request by the responding party seeking such relief against the moving party.

The trial court issued a mutual DVPA restraining order pursuant to section 6305, although Silvino had not requested a restraining order against Isidora.⁶ At the relevant time, former section 6305 provided: “The court may not issue a mutual order enjoining the parties from specific acts of abuse described in Section 6320(a) unless both parties personally appear and each party presents written evidence of abuse or domestic violence and (b) the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.” (Italics added; Stats.1995, ch. 246, § 2, p. 852.)⁷

Silvino contends that section 6305's plain language provides that all that is required for a mutual restraining order is (1) both parties appear and present written evidence of abuse or domestic violence, and (2) the trial court make detailed findings that both parties acted as aggressors and not primarily in self-defense. In other words, Silvino urges that a court has the power to issue a mutual restraining order without a reciprocal request by the responding party. Isidora disagrees, asserting that the trial court lacked authority to issue a restraining order against her in the absence of a written request by Silvino seeking such relief.

As Silvino notes, section 6305 sets forth two criteria for the issuance of a mutual restraining order: both parties must personally appear and present written evidence, and the trial court must make detailed findings that both parties acted primarily as aggressors and not primarily in self-defense. However, although section 6305 is phrased in the negative—it precludes the issuance of a mutual restraining order unless both these criteria are met—it does not purport to specify every prerequisite to the issuance of a mutual restraining order. Section 6305 does not state that a court is empowered to enter a restraining order so long as the two specified criteria are met; rather, it states that a mutual restraining order cannot issue unless those requirements are met. Accordingly, considered alone, section 6305 is ambiguous as to whether the two criteria specified therein are sufficient, or merely necessary.

Our analysis of the statute is guided by well-settled principles. “ ‘A fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.] In construing a statute, our first task is to look to the language of the statute itself. [Citation.] When the language is clear and there is no uncertainty as to the legislative intent, we look no further and simply enforce the statute according to its terms. [Citations.] [¶] Additionally, however, we must consider the [statutory language] in the context of the entire statute [citation] and the statutory scheme of which it is a part. “We are required to give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.’ [Citations.]” [Citations.] “ ‘If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.’ [Citation.] ... ‘When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.’ [Citations.] Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the...